A N M v D M M [2017] KEHC 2366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO. 35 OF 2015

BETWEEN

A N M ................APPLICANT

AND

D M M …...……RESPONDENT

J U D G E M E N T

1. The Petitioner then a spinster and the Respondent then a bachelor were married on 13th December, 1996 at the Registrar’s Office in Nairobi.  A certificate of marriage serial Number [particulars withheld]  was issued to them in accordance with the Marriage Act (Cap 150 Laws of Kenya).  The couple thereafter cohabited in Nairobi.   They were blessed with two issues of the marriage, who were aged as follows at the time of filing Petition.

i. A M  born on 4th June 1997

ii. S W born on 11th June, 2000

2. The Petition filed on 13th February, 2015 is premised on grounds of desertion and cruelty against the Petitioner by the Respondent as particularised in the Petition.  The Petitioner states that since the celebration of their marriage, the Respondent has been guilty of desertion and acts of cruelty against her.

3. The Petitioner complained that sometime in the month of January 2011, the Respondent left the matrimonial home he shared with the Petitioner without any justifiable cause, bringing the cohabitation between himself and the Petitioner to an end.  Further that no conjugal relations have taken place between them due to the Respondent’s desertion and efforts by the Petitioner for the resumption of cohabitation and for reconciliation have been futile.

4. In the particulars of cruelty, the Petitioner averred that the Respondent committed and subjected the Petitioner to acts of verbal and mental cruelty.  That the Respondent is a frequent drunkard, has wilfully and knowingly showed disrespect and disregard for the Petitioner on numerous occasions in public, while at the same time exhibited rude and publicly unacceptable behaviour.

5. The Petitioner also complained that the Respondent showed no care or concern for the marriage and abandoned his duties as a spouse to the Petitioner.  The Respondent exposed the Petitioner and the issues of the marriage to public ridicule and failed and/or neglected to provide for the children of the marriage. That he also refused to maintain the marital relationship on mutual trust.

6. The Petitioner urged that due to the aforesaid acts of desertion and cruelty the Petitioner strongly feels that they cannot continue to hold out as husband and wife with the Respondent.  She, has therefore, asked the court to dissolve the marriage between her and the Respondent.

7. The Petitioner confirmed that this Petition had not been presented or prosecuted in collusion with the Respondent, nor had she connived or condoned the acts of cruelty, and unfaithfulness complained of.

8. On 20th July, 2016 the Deputy Registrar certified that the matter was suitable to proceed for hearing as an undefended cause for one day in Nairobi.  At the hearing on 5th October, 2017 the Petitioner stated that attempts to reconcile with the Respondent have failed, and that there was no possibility of reconciliation even if the Respondent were to reappear. The Respondent was served with the petition and Notice to appear on 26th September, 2017 and did not file an answer to the Petition nor did he appear in court.

9. I have perused the evidence of the Petitioner to establish whether the matrimonial offences set out in the grounds of the petition have been proved.  Matrimonial offences as provided under section 66(2)of the Marriage Act, 2014 are as follows:

“a. adultery by the other spouse;

b. cruelty by the other spouse;

c. exceptional depravity by the other spouse;

d. desertion by the other spouse for at least three years; or

e. the irretrievable breakdown of themarriage.”

10. It is not denied that the parties have not cohabited since the year 2011 todate. From the foregoing the Petitioner has proved the matrimonial offence of cruelty and desertion as found in Section 66(2)(d) and (e) on a balance of probabilities. It is evident therefore that the marriage celebrated between the parties herein on 13th December, 1996 cannot work and has irretrievably broken down with no hope of being salvaged.  In the premise I find that the Petition has merit and I allow it with orders as follows:

a. That the marriage celebrated between the Petitioner and the Respondent at the Registrar’s office in Nairobi on 13th December, 1996 is hereby dissolved.

b. That a Decree nisi dissolving the said marriage is hereby issued to be made absolute thirty (30) days from the date of this judgment.

c. There shall be no orders as to costs.

SIGNED DATEDandDELIVEREDin open court this 3rd day of November, 2017.

……………......

L. A. ACHODE

JUDGE

In the presence of …………….…Advocate for the Petitioner